The Supreme Procuratorate issued a guiding case. Kunshan Anti-Killer Justifiable Defense Case was selected

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 The Supreme Procuratorate issued a guiding case. Kunshan Anti-Killer Justifiable Defense Case was selected


On December 19, the Supreme Peoples Procuratorate issued the twelfth batch of guiding cases, involving four cases of legitimate defense or excessive defense, among which Hemings legitimate defense case was selected.

It is understood that the twelfth batch of guiding cases issued by the Supreme Procuratorate are Chen Mous justifiable defense case, Zhu Fengshans intentional injury (excessive defense) case, Yu Hemings justifiable defense case and Hou Yuqius justifiable defense case.

Sun Qian, deputy chief procurator of the Supreme Procuratorate, said that in recent years, the issue of legitimate defense has aroused widespread concern in the society. Although the cause is isolated cases, it reflects the peoples general demand for democracy, rule of law, fairness, justice and security in the new era. In this regard, it is a prominent and urgent task for the current judicial organs to clarify the boundaries of legitimate defense and respond to the concerns of the masses. The Supreme Peoples Procuratorate issued the twelfth batch of guiding cases, specifically explaining the boundaries and standards of legitimate defense, further clarifying the protection of the right to legitimate defense, actively solving outstanding problems in the application of legitimate defense, and providing judicial reference for procuratorial organs. At the same time, these four cases are not only the guiding cases of legitimate defense, but also the guiding cases of procuratorial organs to safeguard socialist core values by means of the rule of law. We publish these guiding cases specially for the purpose of further punishing evil and promoting good, promoting righteousness, protecting righteousness and bravery, and releasing positive energy to society.

Reporters note that Chens justifiable defense case is aimed at the general defense problem, aiming at in the case of being beaten, personal rights are infringed illegally, although the defense behavior has caused significant damage to the objective consequences, but the defense measures have not obviously exceeded the necessary limits, not belong to excessive defense, according to law does not bear criminal responsibility; Zhu Fengshan intentional injury (defense). Excessive) case involves civil contradictions. This guiding case is aimed at the problem of excessive defense. It clearly points out that in the process of intensifying civil contradictions, legitimate defense can be carried out against the ongoing illegal invasion of houses and minor personal violations, but the intensity of the defensive act is not necessary and causes serious injuries and deaths to the unlawful infringers, which is obviously beyond the necessary limit and causes serious damage. For serious damage, criminal liability shall be borne, but penalties shall be mitigated or exempted. Yu Haimings justifiable defense case and Hou Yuqius justifiable defense case, aiming at the special defense problem, have clearly defined the identification criteria of murder and other violent crimes seriously endangering personal safety.

Sun Qian pointed out that the twelfth batch of guiding cases not only focused on the theme of legitimate defense, but also embodied the procuratorial characteristics of fulfilling legal supervision functions according to law. They embodied the concept and effectiveness of supervision in handling cases and handling cases under supervision from four aspects: intervention in investigation, examination and arrest, examination and prosecution, and second instance procuratorial.

Twelfth batch of guiding cases of the Supreme Inspection

Chen Mou Justifiable Defense Case

(Examination No. 45)

[Key words

Minors intentionally injure legitimate defense and do not approve arrest

[keynote

In the case of being beaten and personal rights being infringed illegally, although the act of defense has caused significant damage to the objective consequences, the measures of defense have not obviously exceeded the necessary limits. They are not excessive defense and do not bear criminal responsibility according to law.

[Basic case

Chen Mou, a minor, a middle school student.

In early January 2016, because Chen Mous girlfriend in A posted good messages in cyberspace, A gathered B and others, and beat Chen Mou.

At noon on January 10, six people (all minors) from A, B and C, met Chen Mou at the entrance of Chens middle school. Some people suggested that Chen Mou inform the teacher of their fight and ask for a comment. After a section of the road, the first class stopped Chen Mou for questioning. Chen Mou explained that there was no complaint. The first class refused to stop and seized Chen Mou and rounded him up. Three of Bs friends (all minors) were nearby and joined in the siege of Chen Mou. Among them, some hit Chen with their knees on his chest, some hit Chen with stones on his arm, some hit Chen with steel pipe on his back, and others slammed Chen or strangled his neck or punched him or kicked him. Chen took out his folding fruit knife (8.5 cm in length, not a controlled knife) and ran away after swinging the knife indiscriminately. Some of the assaulters continued to chase and throw stones at Chen Mou in the back and leg. Chen Mou fled to the school and the pursuers were stopped by the school security. Chen Mou stabbed A, B and C in the course of the counter-attack. After identification, the injury degree of the three persons constituted the second grade of serious injury. After physical examination, Chen found many soft tissue injuries in his body.

After the incident, Chens school submitted materials to the judicial organs, confirming that Chen was a disciplined, conscientious and excellent student.

The public security organ investigates Chens suspected intentional injury and takes compulsory measures of criminal detention. It then submits the case to the procuratorial organ for approval. On the basis of the facts ascertained through examination and in accordance with the provisions of Article 20, paragraph 1, of the Criminal Law, the procuratorial organ considers Chen Mous act as legitimate defense and does not bear criminal responsibility, and decides not to approve arrest. The public security organ released Chen Mou and asked for reconsideration. After reconsideration, the procuratorial organ shall maintain the original decision.

The procuratorial organs actively carry out interpretation and reasoning work in the process of handling cases. After fully understanding the facts and legal provisions, the relatives of Class A approve the decision of the procuratorial organs.

[Reasons for not approving arrest

According to the public security organs, Chen Mous behavior, though defensive in nature, has obviously exceeded the necessary limit and belongs to the crime of excessive defense and suspected of intentional injury. The procuratorial organs believe that Chen Mous defensive act does not obviously exceed the necessary limit, does not belong to excessive defense and does not constitute a crime. The main reasons are as follows:

First, Chen Mou is facing ongoing unlawful infringement, and his counterattack is defensive. Anyone who faces ongoing illegal infringement has the right to stop it and implement defense in accordance with the law. In this case, the first class intercepted Chen Mou and carried out the siege on the pretext of an ongoing unlawful infringement, Chen Mous counterattack clearly has the nature of defense.

Secondly, Chen Mou carries knives with him, which does not affect the recognition of legitimate defense. It is not the defender who carries the tools that can be used for self-defense that has an impact on the identification of legitimate defense, but whether the defender intends to fight with each other. Chen Mou did not intend to fight with the other side beforehand. He explained his concession after being stopped. Finally, he was forced to fight back when he was surrounded by the other side. His fruit knife with him, whether carried daily or prepared beforehand, did not affect the recognition of legitimate defense.

Thirdly, Chens defense measures did not obviously exceed the necessary limits, and did not belong to excessive defense. Chen Mous defensive act caused serious injuries to three people who committed illegal infringement, which caused significant damage objectively, but the defensive measures did not obviously exceed the necessary limit. Chen Mou was surrounded and beaten by nine people, some of whom used steel pipe, stone and other tools, the strength of the two sides is very different, Chen Mou with fruit knives to enhance defensive capabilities, in terms of means of strength is reasonable. Moreover, when Chen escaped, the other party continued to pursue, and the joint infringement did not stop. Therefore, in view of the actual need to stop the overall illegal infringement, Chens knife-wielding and stabbing are not incompatible. Generally speaking, although Chens defensive actions have the objective consequences of causing serious injuries to many people, the defensive measures have not obviously exceeded the necessary limits and are not excessive defense according to law.

[Guiding Significance

Article 20, paragraph 1, of the Criminal Law stipulates that in order to protect the state, public interests, personal, property and other rights of oneself or others from ongoing unlawful infringement, the act of stopping unlawful infringement and causing damage to the unlawful infringer shall be legitimate defence and shall not bear criminal responsibility. Judicial practice usually calls this legitimate defense general defense.

Generally speaking, the limited requirement of defense, which exceeds the limit, belongs to excessive defense and requires criminal responsibility. The limitation condition stipulated in the criminal law is that significant damage is caused by obviously exceeding the necessary limit. Specifically, although the defending measures of the perpetrator obviously exceed the necessary limit, the result of the defending does not cause significant damage objectively, or the result of the defending does not cause significant damage objectively, but the measure of defending does not obviously exceed the necessary limit, which can not be regarded as excessive defense. In this case, Chen responded with a knife in order to protect his personal safety. In terms of the nature of the rights to be protected and the intensity of the means used by the infringer, it can not be considered that the defensive measures obviously exceeded the necessary limit. Therefore, even if the defensive results caused significant damage objectively, it is not excessive defense.

Justifiable defense can be used to protect their own legitimate rights and interests, but also to protect the legitimate rights and interests of others. Article 6, paragraph 2, of the Law of the Peoples Republic of China on the Protection of Minors also stipulates that any organization or individual shall have the right to dissuade, stop or file a complaint or complaint with the relevant departments against acts that infringe on the legitimate rights and interests of minors. For minors who are being violated, anyone has the right to intervene in the protection, and adults are more responsible for providing assistance. However, if both sides of the conflict are minors, adults should give priority to the ways of dissuasion and restraint when they intervene; if dissuasion and restraint are ineffective, when isolating, controlling or subduing the infringer, they should pay attention to the appropriate means and intensity of behavior.

When disputes arise in handling justifiable defense cases, the procuratorial organs shall, in accordance with the Provisions of the Supreme Peoples Procuratorate on Implementing the System of Procurators Interpretation of Cases, promptly and actively carry out the work of interpretation and reasoning. Questions and doubts on facts determination, law application and case handling procedures should be answered, publicity and education on the rule of law should be carried out, the legitimate rights of the parties and other litigant participants should be guaranteed, and efforts should be made to close the case.

When examining arrests, the Peoples Procuratorate shall strictly check the facts, evidence and application of law. According to the facts ascertained, if the criminal suspects behavior belongs to legitimate defense and does not bear criminal responsibility, he shall make a decision not to approve arrest according to law, so as to protect the innocent person from criminal prosecution.

[Relevant Provisions

Article 20 of the Criminal Law of the Peoples Republic of China

Articles 90 and 92 of the Criminal Procedure Law of the Peoples Republic of China

Zhu Fengshan Intentional Injury (Overdefense)

(Examination No. 46)

[Key words

Non-governmental contradictions intentionally injure the second instance of over-defense

[keynote

In the process of intensifying civil contradictions, legitimate defense can be carried out against the ongoing illegal invasion of residential buildings and minor personal violations. However, if the intensity of the defensive act is not necessary and causes serious injury or death to the unlawful infringer, it is obviously beyond the necessary limit, causing significant damage and should bear criminal responsibility, but punishment should be mitigated or exempted.

[Basic case

Zhu Fengshan, male, born on May 6, 1961, is a farmer.

Zhu Fengshans daughter Zhu Mou and Qimous husband and wife, Zhu Mou filed a divorce lawsuit in January 2016 and separated from Qimou, Zhu Mou took her daughter and lived with Zhu Fengshans husband and wife. Qimou disagreed with divorce, so he often went to Zhu Fengshans house to make a noise. On April 4, Qimou smashed Zhu Fengshans door and window glass and Zhus car glass during the noise. In order to prevent Qimou from re-entering the courtyard, Zhu Fengshan locked the small doors on the side of the courtyard and welded iron windows. At 22 oclock on May 8, Qimou drove to Zhu Fengshans house after drinking. He wanted to enter the courtyard through the small gate, but after failing to succeed, he shouted and scolded outside the gate. Zhu Mou is not at home, only Zhu Fengshan and his wife take their granddaughter home. Zhu Fengshan informed Qimou of the situation, and Qimou refused to give up. Zhu Fengshan called his neighbors and Qimous brother, asking them to persuade them to leave. Under the persuasion of neighbors, Qimou drove away. At about 23 oclock, Qimou drove back and stood on the hood of the car shaking, climbing the courtyard gate, to forcibly enter, Zhu Fengshan held an iron fork to block the alarm. Qimou climbed up the courtyard wall and threw tiles at Zhufengshan. Zhu Fengshan hides aside and takes out a sheep knife from the house to guard against it. Then Qimou jumped into the hospital and tore with Zhu Fengshan bare-handed. Zhu Fengshan stabbed Qimou in the chest with a knife. Zhu Fengshan saw Qimou injured and opened the door. The police arrived later. Qimou died of acute massive hemorrhage due to puncture of aorta, right atrium and lung. Zhu Fengshan alerts the police in the course of the incident, and waits for the police to arrest on the spot after the incident, which belongs to automatic surrender.

In the first instance, the defender argued that Zhu Fengshans actions belonged to excessive defense, and the public prosecutor believed that Zhu Fengshans actions were not defensive. According to the relationship between Zhu Fengshan and Qimou and the specific circumstances of the case, the illegal acts of Qimou have not yet reached the level that Zhu Fengshan must defend and stop by stabbing with knives. Zhu Fengshans actions are not defensive in nature and do not belong to excessive defense; Zhu Fengshans confession of the main criminal facts after voluntary surrender is voluntary, punishment is light according to law, and Zhu Fengshans offenders intentionally injure. For the crime, he shall be sentenced to fifteen yearsimprisonment and five years deprivation of political rights.

Zhu Fengshan appealed on the grounds of excessive defense. The Peoples Procuratorate of Hebei Province, appearing in court at the second instance, held that according to the facts ascertained and the provisions of Article 20, paragraph 2, of the Criminal Law of the Peoples Republic of China, Zhu Fengshans acts belonged to excessive defense and should bear criminal responsibility, but should be mitigated or exempted from punishment. Zhu Fengshans reasons for appeal were valid. The second judgment of the Hebei Provincial Higher Peoples Court found that Zhu Fengshans knife-wielding death of the victim belonged to excessive defense and punishment should be mitigated according to law. The opinions of the Hebei Provincial Peoples Procuratorate on appearing in court should be supported. The judgment revoked the sentencing part of the first judgment and sentenced Zhu Fengshan to seven yearsimprisonment.

[Review of second instance and opinions of appearing in court by procuratorial organs

The second instance examination of the procuratorial organ held that Zhu Fengshan and his defendersopinions on excessive defense were established. The first instance public prosecution and judgment did not confirm this inappropriately, which belonged to the error of applicable law. The second instance should make corrections, and based on this, the court opinions were expressed. The main opinions and reasons are as follows:

First, Qimous behavior belongs to the ongoing illegal infringement. Qi Mou and Zhu Mou have separated, Qi Mous behavior that night obviously does not belong to visiting children in terms of time and manner, so after Zhu Fengshan refused to enter the hospital, his shaking, climbing the gate and jumping into the hospital belong to illegal intrusion into the house. Qimou first threw tiles and then tore them up, violating Zhu Fengshans personal rights. These acts of Qimou belong to the ongoing illegal infringement.

Secondly, Zhu Fengshans actions have the legitimacy of defense. Qimous behavior from noisy to intrusive housing, personal assault, showing an escalating trend, has a certain danger. After being persuaded to leave, Qimou returned again and insisted on committing infringement in the late night. The illegal act has a certain urgency. Zhu Fengshan first sought advice, then called the police for help. He never intentionally fought with Qimou. Preparing tools in advance was also for the purpose of defense, so his counterattack was justified.

Thirdly, Zhu Fengshans defensive actions obviously exceed the necessary limit and cause significant damage, which belongs to excessive defense. The purpose of Qimous door-to-door disturbances and disturbances is not to divorce, but to live together with Zhu, which is quite different from the acts of retaliation after divorce. Although Qimou has carried out the act of throwing tiles and tearing, the whole is still within the scope of the disturbance. The violation of Zhu Fengshans personal rights is still minor, and there is no obvious danger to the health or life of Zhu Fengshan and his family. Zhu Fengshan has already alerted the police, and has room to continue to circle, appease and wait, but chooses to use knives to stab the key parts of Qimou directly in the tearing process, which eventually causes serious injury and death in Qimou. In a word, Zhu Fengshans defensive act is not necessary in the intensity of defensive measures, and there is a great difference between the results of defense and the rights protected. It should be considered that it is excessive defense and should bear criminal responsibility according to law, but it should be mitigated or exempted from punishment.

[Guiding Significance

Article 20, paragraph 2, of the Criminal Law stipulates that if legitimate defense obviously exceeds the necessary limit and causes significant damage, it shall bear criminal responsibility, but the punishment shall be mitigated or exempted. Judicial practice usually refers to the situation stipulated in this paragraph as excessive defense.

In the course of defense, major damage refers to the consequence of causing death and serious injury to the unlawful infringer, which does not belong to major damage; obviously exceeding the necessary limit refers to the lack of necessity of defensive measures and the disparity between the intensity of defense and the degree of infringement according to the comprehensive measurement of the nature of the rights protected, the intensity and urgency of the unlawful infringement. In judicial practice, the determination of major damage is relatively well grasped, but it is relatively complex beyond the necessary limit. We should make a comprehensive judgement according to the nature, means, intensity and degree of harm of unlawful infringement, as well as the nature, means, intensity, timing and environment of defensive action. In this case, Zhu Fengshan lost his life in order to protect his residence from possible personal injury. Compared with other factors such as the nature, means, intensity and result of the defense and infringement, Zhu Fengshan is neither necessary nor disparate, and it is obviously beyond the necessary limit to cause significant damage.

If the cases caused by civil conflicts are extremely complex and involve disputes of defensive nature, we should adhere to the principle of law and prudence, make accurate judgments and affirmations, so as to guide citizens to rationally settle disputes and avoid unnecessary use of force in disputes. In view of the common situations in practice, we should pay attention to the following points: first, we should make a holistic judgment, that is, distinguish the causes and consequences from the right and wrong. According to the facts found, if the acts of the parties are defensive, we should make a determination according to law, not only the result theory, but also because the contradiction has not been resolved temporarily, and other factors, such as not to identify or dare to identify; second, we should identify close relatives. The intensity of defense must be more strictly restricted in the light of the specific circumstances of the case. Thirdly, whether the victim is guilty or not and whether the victim is in the process of unlawful infringement should be accurately distinguished and identified through detailed examination and supplementary examination.

In handling criminal cases, the Peoples Procuratorate must attach great importance to the opinions of the criminal suspects, defendants and their defenders on legitimate or excessive defense. If the opinions are established, they should be adopted or supported in a timely manner, and the legitimate rights of the parties concerned should be guaranteed in accordance with the law.

[Relevant Provisions

Articles 20 and 234 of the Criminal Law of the Peoples Republic of China

Article 235 of the Criminal Procedure Law of the Peoples Republic of China

Yu Hemings Justifiable Defense Case

(Examination No. 47)

[Key words

Revocation of case of justifiable defense of assault

[keynote

The specific content of criminal intent is uncertain, but it is enough to seriously endanger personal safety. It should be recognized as the murder stipulated in the third paragraph of Article 20 of the Criminal Law. The murder has caused an urgent danger that seriously endangers personal safety. Even if there are no serious practical consequences, it will not affect the establishment of legitimate defense.

[Basic case

Yu Haiming, male, born on March 18, 1977, is a hotel business manager.

At about 21:30 on August 27, 2018, while riding a bicycle on Zhenchuan Road in Kunshan City, Jiangsu Province, Liu drove a drunken car (87 mg/100ml of blood alcohol content) forcibly into the non-motorized lane to the right, and almost touched Yu. One of Lius fellow passengers got out of the car and argued with Yu Heming. When he was persuaded to return, Liu suddenly got out of the car, pushed forward and kicked him. Despite persuasion, Liu continued to chase, and took out a machete from the car (a control tool) and hit Heming in the neck, waist and leg with the knife face continuously. Liu Mou threw off his machete in the battle process and grabbed it in Heming. Liu Mou came forward to fight for it. In the battle, he stabbed Liu Mou in the abdomen and buttocks and slashed his right chest, left shoulder and left elbow. Liu Mou was injured and ran to the car. He continued to chase and chop two knives, one of which hit the car. Liu Mou ran away from the car and returned to the car in Heming. He took Liu Mous mobile phone out of the car and put it in his pocket. When the police arrived at the scene, Yu handed over his mobile phone and machete to the police officers (Yu said that taking Lius mobile phone was to prevent the caller from retaliating). Liu Mou fled, fell into the nearby green belt, and was ineffective after medical treatment. He died of hemorrhagic shock caused by rupture of abdominal veins and other major veins on the same day. On Hemings physical examination, there were 1 strip contusion of left neck and 1 strip contusion of left thoracic rib.

On the evening of August 27, the public security organs filed the case of Yu Haimings Intentional Injury for investigation. On August 31, the public security organs found out all the facts of the case. On September 1, the Kunshan Public Security Bureau of Jiangsu Province, based on the facts ascertained by investigation and the provisions of Article 20, paragraph 3, of the Criminal Law of the Peoples Republic of China, decided to revoke the case of intentional injury against Haiming in accordance with the law. Meanwhile, the public security organs listened to the opinions of the procuratorial organs in accordance with the relevant provisions, and the Kunshan Peoples Procuratorate agreed to the decision of the public security organs to cancel the case.

[Opinions and Reasons of the Procuratorial Organs

The opinions of the procuratorial organs are consistent with those of the public security organs. The specific arguments and reasons are as follows:

Firstly, the question of whether Liu Mous behavior belongs to murder. In the process of demonstration, some opinions put forward that Liu only used knife-edge to hit Heming, the specific content of criminal intent is uncertain, and should not be identified as an assault. After argumentation, the author holds that the determination of the murder should follow the provisions of Article 20, paragraph 3, of the Criminal Law and take violent crime seriously endangering personal safety as the standard to grasp. Liu Mous pushing and kicking behavior in the initial stage is not an assault, but the nature of the behavior has been upgraded to violent crime since the attack with machetes. Liu Mous attack is fierce, and his weapon can easily cause death and injury. With the development of the situation, it is difficult to predict what kind of damage will happen next, and Hemings personal safety is in real, urgent and serious danger. Liu Mous specific intention of killing or injury is uncertain, which is the characteristics of many acts of murder, rather than the obstacles to identification. Therefore, Liu Mous behavior conforms to the criterion of assault and should be identified as assault.

Secondly, whether Lius violation belongs to the ongoing issue. In the process of demonstration, some opinions put forward that after Heming grabbed the machete, Lius infringement had ended and was not in progress. After argumentation, it is believed that judging whether the infringement has ended depends on whether the infringer has substantially left the scene and whether there is the possibility of continuing or launching another attack. After Heming grabbed the machete, Liu immediately went forward to fight, the violation did not stop, Liu immediately ran to the car hiding the machete before the injury, Heming at this time to make continuous pursuit also meet the needs of defense. In Hemings pursuit of two knives were not cut, Liu Mou ran away from the car, in Heming also did not pursue. Therefore, when Heming grabbed the machete to fight back, Liu neither abandoned the attack nor substantively left the scene, so we can not think that the violation has stopped.

Thirdly, whether Yu Haimings actions belong to legitimate defense or not. In the process of demonstration, some opinions put forward that Yu Haiming himself suffered less damage, but the defensive behavior caused the consequences of Liu Mous death. The comparison between the two is not compatible. Yus behavior belongs to excessive defense. After argumentation, the author holds that unlawful infringement includes both actual and dangerous acts, and that legitimate defense can also be applied to dangerous acts. The opinion that the comparison between Yu Hemings and Liu Mous injuries is not suitable only pays attention to the actual harmful acts but neglects the dangerous acts, which actually requires the defender to wait until the violent crime causes certain harmful consequences before carrying out the defense, which does not meet the need to stop the crime in time and prevent the crime from succeeding, and also inappropriately reduces the legitimate defense according to law. The scope of establishment is incorrect. In this case, on the premise that Liu Mous behavior belongs to murder because of its danger, the defensive action taken by Heming to cause his death does not belong to excessive defense according to law and does not bear criminal responsibility. Whether or not Heming himself is injured or seriously injured does not affect the recognition of legitimate defense. The public security organs have decided that Hemings actions are justifiable defense, and they have decided to revoke the case according to law, which is completely correct.

[Guiding Significance

Article 20, paragraph 3, of the Criminal Law stipulates that if an act of defense is taken against an ongoing murder, homicide, robbery, rape, kidnapping or other violent crime that seriously endangers personal safety and causes casualties or injuries to an unlawful infringer, it shall not be unduly defended and shall not be held criminally liable. Judicial practice usually calls this legitimate defense special defense.

The purpose of special defense stipulation in criminal law is to further embody the order idea that law cant give way to illegality, and affirm that the defender should fight back with equal or excessive intensity. Even if it causes casualties of illegally infringed persons, there is no need to worry about the possibility of establishing excessive defense and thus constituting a crime. In judicial practice, if faced with the infringement of the nature of murder by illegal infringers, the restrictions on defenders are still too severe, which not only violates the legislative intent, but also makes it difficult to stop crimes and protect citizenspersonal rights from infringement.

Applying the provisions of this paragraph, assault is a difficult point to identify, which should be grasped as follows: first, it must be a violent crime, for non-violent crime or general violence, can not be identified as an assault; second, it must seriously endanger personal safety, that is, to pose a serious risk to human life and health. In specific cases, the subjective intent of some acts of violence has not yet been clearly shown through objective acts, or the perpetrator himself has carried out them with generalized intent. Although the intentional content of such acts is uncertain, it has shown a variety of intentional possibilities. Among them, as long as there is a real possibility of causing serious injury or death to others, it should be considered as murder.

Justifiable defense is premised on the ongoing illegal infringement. The so-called ongoing means that unlawful infringement has begun but not yet ended. Unlawful infringement is various and of different nature. To judge whether it is going on, we should make a concrete analysis of the specific behavior and the scene situation. Judgment criteria can not mechanically comprehend and judge the proceeding and accomplishment of criminal law, because the proceeding and accomplishment focus on the stage of acts that infringe upon the punishment of human beings, while the infringement is ongoing, focusing on the protection of the interests of defenders. Therefore, unlawful infringement can not be required to be imposed on the victim, as long as the real danger of unlawful infringement is imminent, or has reached the accomplished state, but the infringement has not been implemented, it should be recognized as being carried out.

It should be emphasized that there is no problem of excessive defense in special defense, so it can not be broadly recognized. We should be very cautious in identifying special defenses in cases caused by civil contradictions, where the opposition between illegality and legitimacy is not obvious, and where there are elements of vent anger and retaliation.

[Relevant Provisions

Article 20 of the Criminal Law of the Peoples Republic of China

Hou Yuqiu Justifiable Defense Case

(Examination No. 48)

[Key words

Non-prosecution of Intentional Injury to Justifiable Defense by Gathering Fighting

[keynote

A single-party affray is an unlawful infringement, and a party without intentional affray may exercise legitimate defense. If unilateral armed assault causes serious danger to the personal safety of others, it shall be recognized as other violent crimes that seriously endanger the personal safety as stipulated in Article 20, paragraph 3, of the Criminal Law.

[Basic case

Hou Yuqiu, male, born on May 18, 1981, is a migrant worker.

Hou Yuqiu is an employee of a health club run by Gemou. At about 22:40 on June 4, 2015, Shen Mou, a shareholder of a foot bath, suspected that Ge Mou and others had reported prostitution and prostitution in his shop, so he gathered four employees of Lei Mou and Chai Mou to rush to Ge Mous health club with baseball bats and daggers. Shen Mou entered the club first, overthrew the potted plant provocation in the lobby without reason, and wrestled with Ge Mou and others. Lei Mou, Chai Mou and others then rushed into the club with baseball bats and daggers, beating shop staff, including Lei Mou with daggers twice stabbed Zhonghou Yuqiu in the right thigh. In the meantime, Chai Mous baseball bat fell, Hou Yuqiu picked up the bat and swung it, hit Lei Mou on the head and caused him to fall on the spot. The staff of the club alarmed, and the public security officers rushed to the scene, seized Shen and others, and sent Hou Yuqiu and Leimou to medical treatment. Leimou died on June 24 due to severe craniocerebral injury. Hou Yuqius degree of injury constituted a slight injury, and two other people in the club were slightly injured.

The public security organ shall transfer Hou Yuqiu to the procuratorial organ for examination and prosecution on suspicion of intentional injury. The Peoples Procuratorate of Hangzhou City, Zhejiang Province, based on the facts ascertained through examination and the provisions of Article 20, paragraph 3, of the Criminal Law of the Peoples Republic of China, considers Hou Yuqius actions as legitimate defense and does not bear criminal responsibility, and decides not to prosecute Hou Yuqiu.

[Reasons for non-prosecution

The procuratorial organs believe that the acts of Shen Mou and Lei Mou in this case belong to the other violent crimes that seriously endanger personal safety stipulated in the third paragraph of Article 20 of the Criminal Law. Hou Yuqiu took defensive actions against them, resulting in the death of Lei Mou, one of the unlawful infringers, which does not belong to excessive defense according to law and does not bear criminal responsibility. The main reasons are as follows:

First, Shen Mou and Lei Mous actions belong to other violent crimes that seriously endanger personal safety. To judge whether the unlawful infringement belongs to the other crime stipulated in the third paragraph of Article 20 of the Criminal Law, we should take the murder, robbery, rape and kidnapping listed in this paragraph as the reference, and make a comprehensive judgement by comparing the degree of violence, the degree of danger and the strength of punishment given by the Criminal Law. The acts of Shen Mou and Lei Mou in this case belong to one-sided armed gathering and fighting. Although the statutory minimum penalty for constituting a crime is not heavy, which is the same as the general crime of injury, Article 292 of the Criminal Law also stipulates that if people gather to fight and cause serious injury or death, they shall be convicted and punished in accordance with the provisions of the Criminal Law on intentional injury causing serious injury or intentional killing. This provision of the Criminal Law shows that the act of gathering together to fight can often cause serious injury or death to others. According to the specific circumstances of the case, it can be judged that the crime of gathering together to fight is consistent with the crime of intentionally causing casualties in the degree of violence and danger. In this case, Shen Mou, Lei Mou and other five people gathered together to fight with powerful tools such as baseball bats and daggers. Three people have been injured in a short period of time. They should be recognized as other violent crimes that seriously endanger personal safety.

Secondly, Hou Yuqius behavior is defensive. Hou Yuqius health club and his counterparts foot bath shop, although there is a business competition relationship, but Hou Yuqius side did not intend to fight, the cause of this case is the other side to initiate the fight, the place of the fight is in the local shop, so the relationship between attack and defense between the two sides is clear. Shenmou gathered Leimou and others to fight is an ongoing unlawful infringement. Hou Yuqiu, who did not intentionally fight, can legitimately defend himself. Therefore, Hou Yuqius behavior has the nature of defense.

Thirdly, Hou Yuqius behavior does not belong to excessive defense and does not bear criminal responsibility. In this case, the joint infringement of Shen Mou, Lei Mou and others seriously endangers the personal safety of others. Hou Yuqiu took defensive actions to protect himself and his staff from violence, resulting in the death of Lei Mou, one of the unlawful infringers. According to the provisions of Article 20, paragraph 3, of the Criminal Law, it does not belong to excessive defense and does not bear criminal responsibility.

[Guiding Significance

The determination of other violent crimes seriously endangering personal safety stipulated in the third paragraph of Article 20 of the Criminal Law, in addition to judging by comparing the degree of violence, the degree of danger and the degree of punishment imposed by the Criminal Law, referring to the four crimes listed in this paragraph, should also pay attention to the following points: First, the object of the unlawful act is personal safety, that is, harm. Human rights to life, health, freedom and sex. Property rights, democratic rights and other legitimate rights other than personal safety are not included, which is also an important feature of special defense which is different from general defense. Second, unlawful violations are violent and should reach the level of crime. The homicide, robbery, rape and kidnapping listed in this paragraph should be understood in a broad sense, that is, not only referring to these four specific crimes, but also including such violence as a means of committing other crimes, such as robbery as a means of robbery, robbery of firearms, ammunition, explosives, abduction of women and children as a means of kidnapping, and human life. Third, unlawful infringement should reach a certain degree of severity, that is, it may cause serious injury or death to others. It should be emphasized that whether the illegal infringement has caused actual injury consequences does not necessarily affect the establishment of special defense. In addition, special defense can be implemented in view of the serious danger to the personal safety of others caused by unlawful infringement.

In cases of joint unlawful infringement, assault and other violent crimes that seriously endanger personal safety can be identified in a certain cross-cutting way, which can be judged in combination with the characteristics of the whole case and the specific behavior characteristics of each infringer. In addition, provocative acts should not be directly identified as other violent crimes that seriously endanger personal safety. If provocative acts are violent and seriously endanger the personal safety of others, they can be identified as murders, murders or robberies in the provisions of Article 20, paragraph 3, of the Criminal Law. It needs to be clarified that what kind of charges are ultimately established for infringement has no effect on the identification of legitimate defense of defenders.

When examining and prosecuting, the Peoples Procuratorate shall strictly check the facts, evidence and application of law. According to the facts ascertained, if the criminal suspects behavior belongs to legitimate defense and does not bear criminal responsibility, he shall make a decision not to prosecute according to law, so as to protect the innocent person from criminal prosecution.

[Relevant Provisions

Article 20 of the Criminal Law of the Peoples Republic of China

Article 177 of the Criminal Procedure Law of the Peoples Republic of China

Source: Responsible Editor of Justice Network: Yang Yi_NBJ10647